Opinion
No. 15–P–506.
12-15-2016
COMMONWEALTH v. Ronny MONTEIRO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court jury convicted the defendant of threatening to commit a crime (stabbing) against the person or property of another, pursuant to G.L. c. 275, § 2. In this consolidated appeal from the judgment and the order denying his motion for postconviction relief, he argues that a conviction of threatening to commit a crime requires a specifically named victim, and that the discrepancies between the complaint, the Commonwealth's evidence at trial, and the judge's instructions to the jury regarding the victim created a variance requiring acquittal. We affirm.
The jury found the defendant not guilty of a separate assault charge.
On April 30, 2014, the defendant was living in an apartment with his girl friend and her mother, Andrea Pierre–Louis, among others. That morning, Pierre–Louis overheard an ongoing argument between her daughter and the defendant and intervened after the defendant threatened her daughter with a knife. When Pierre–Louis confronted the defendant, he said he was going to stab her and he moved toward the area of the kitchen where the knives were kept. Pierre–Louis then returned to her bedroom and telephoned the police. The complaint charging the defendant did not list a victim's name. At trial, no target of the defendant's threat was specified until the trial judge identified Pierre–Louis as the victim in his final jury instructions.
The defendant argues that the name of the victim is an essential element of the offense. Because the application for the complaint lists Pierre–Louis as the victim of the threat charge, the defendant argues that the "sole victim" of that charge is Pierre–Louis. The defendant further argues that the Commonwealth in presenting evidence of two victims, Pierre–Louis as well as her daughter, created a material variance—adding a second victim—that caused him prejudice. As such, the defendant argues that his conviction must be reversed.
Because the defendant failed to raise the issue of a variance before or during the defendant's trial, we review "to determine whether there was an error and, if so, whether the error created a substantial risk of a miscarriage of justice." Commonwealth v. Kelly, 470 Mass. 682, 697 (2015).
General Laws c. 275, § 2, criminalizes "an expression of intention to inflict a crime on another and an ability to do so in circumstances that would justify apprehension on the part of the recipient of the threat." Commonwealth v. Sholley, 432 Mass. 721, 724–725 (2000), quoting from Commonwealth v. Robicheau, 421 Mass. 176, 183 (1995). The defendant argues that the statute requires a specific victim be named, citing case law that states that the crime requires a defendant make a threat to a target. See, e.g., Commonwealth v. Hokanson, 74 Mass.App.Ct. 403, 406 n. 5 (2009). We find nothing in Massachusetts case law that indicates that a specific victim must be named by the Commonwealth in order to secure a conviction under G.L. c. 275, § 2. Instead, the statute requires a threat be communicated to an intended crime victim, directly or indirectly. See Commonwealth v. Hamilton, 459 Mass. 422, 426–428 (2011).
Also, there was no error in the way the Commonwealth presented proof of the crime charged. "Absent a showing that the Commonwealth's theory surprised the defendant to his prejudice," a conviction where a variance is alleged will stand, so long as the charging document correctly states the crime's essential elements. Commonwealth v. O'Connell, 432 Mass. 657, 661 (2000). Commonwealth v. Gray, 85 Mass.App.Ct. 85, 87 (2014). Here, the criminal complaint correctly detailed the elements of the charge and the police report included a statement by Pierre–Louis relating the defendant's threat: "I'm going to stab you in your neck, like I'm going to stab your daughter." That was more than sufficient to prevent any surprise on the part of the defendant that the Commonwealth was aware of threats made to both Pierre–Louis and her daughter. See O'Connell, supra at 660–661 (no prejudicial error where unnamed "child" listed as victim in indictments charging posing a child in the nude and indecent assault and battery was later identified as defendant's niece at trial). The elements of the crime, as outlined above, require that the defendant threaten to commit a crime against another. Contrary to the defendant's argument, there was no prejudicial variance between the allegations in the complaint and the proof at trial.
As to the jury instructions, to which the defendant did not object, the judge did not commit error in failing to instruct that Pierre–Louis was the only victim. Even if we were to assume it was error, we conclude that it would not have created a substantial risk of a miscarriage of justice. Pierre–Louis testified to the threat made to her by the defendant. The defendant proceeded on a theory that there was no evidence as to the presence of a knife and that he took no action that supported the legitimacy of any threat. That defense was not victim-specific, but was rooted in the circumstances of the threat itself. The final jury instructions would not have created a substantial risk of miscarriage of justice for the defendant.
Judgment affirmed.
Order denying motion for postconviction relief affirmed.